ADVOCACY FOR CHILDREN WITH GAY AND LESBIAN : A CALL FOR THE BEST INTERESTS OF THE TO BE PARAMOUNT IN THE CASE OF NON-BIOLOGICAL, NON-ADOPTIVE PARENTS

ANGELA DUNNE TIRITILLI† SUSAN ANN KOENIG†

INTRODUCTION

With increasing frequency, law practitioners in Nebraska are being called upon to represent gays and lesbians who are neither the biological nor adoptive of children with whom they have established parental relationships. The Nebraska Jurisdiction Act

(hereinafter referred to as the “NCCJA”)1 provides the statutory basis for the rights of these children to have these relationships protected through the custody proceedings under the Act.

Through the application of the equitable doctrine of in loco parentis, courts can provide security for these children. This ensures that the best interests of the child are treated as paramount.

Gays and lesbians who have parented children to whom they have neither given birth nor adopted may seek representation after the end of a relationship or upon the death or disability of a partner. As in all cases involving parents, the nature of the relationship to the child can vary. In some situations the client may have been involved from the very decision of her partner to be artificially inseminated for the purposes of a child from birth. In other cases, the couple may have been together only a short time, and both biological parents of the child may be active in the child’s life. The ability of the courts to respond to a broad range of circumstances for children of non-biological/non-adoptive parents is essential if their best interests are to be guaranteed.

The time has come for Nebraska courts to abolish the parental preference doctrine, which gives a superior right to custody to the biological or adoptive parent, in favor of the best interests of the children test. By applying the best interests of the child standard as is done in dissolution,

and juvenile matters, courts can have greater power to meet the needs of children who

are raised in non-traditional . In order to be zealous advocates, attorneys for non-

biological, non-adoptive parents must argue the application of the best interests of the child in all

cases involving custody or visitation. Attorneys must utilize the NCCJA, urge the application of the doctrine of in loco parentis and the best interests of the child standard, and educate judges to

eliminate any bias which may exist about the impact of on parenting.

This essay will explore Nebraska statutory schemes as recognizing rights for non-

biological, non-adoptive parents. In doing so, this essay will review the statutes that specifically

acknowledge the parent/child relationship. First, it will examine Nebraska statutes regarding:

and dissolution of marriage, paternity, guardianship, juvenile actions, adoption, and

actions under the NCCJA. This essay will posit that non-biological, non-adoptive parents may

utilize the NCCJA to request a custody determination be made in the best interests of a child.

Second, this essay will then assess the equitable doctrines recognized in Nebraska to preserve and

protect parent/child relationships when the parent may or may not be a biological or adoptive

parent. This essay will urge that the in loco parentis doctrine should be favored in custody and

visitation matters and the parental preference doctrine abolished.

Finally, this essay will extrapolate from the statutory review and equitable doctrine

evaluation that the best interests of the child is always at the heart of any analytical framework in

an action where custody or visitation is at issue. This essay will argue that the best interest of the

child require that the sexual orientation of a non-biological, non-adoptive parent have no impact on the rights of that parent or a corresponding custody determination.

A. A REVIEW OF NEBRASKA STATUTES IMPACTING THE PROTECTION OF RELATIONSHIPS BETWEEN CHILDREN AND THEIR NON-BIOLOGICAL, NON-ADOPTIVE PARENTS.

The status of non-biological, non-adoptive parents in Nebraska is unclear under current statutes and recent case law. A review of Nebraska's statutory schemes regarding parents and children is necessary to first assess how a parent/child relationship may be legally established and under what circumstances a custody determination may be made.

This evaluation will indicate whether non-biological, non-adoptive persons have rights or legal mechanisms available to protect and preserve their status as a parent. In doing so, this essay will review the statutes that specifically acknowledge the parent/child relationship. The question is whether under Nebraska law, a non-biological, non- adoptive person can be a legal parent.

For most practitioners and judges, the term “parent” generally refers to biological or adoptive parents. From legal and statutory definitions to legal theories regarding parents, these are most often the persons included as parent and are the persons most commonly referred to as parents. But as the make up of family diversifies and familial relationships continue to transform, the structure of knowledge of what defines a family must be systematically dismantled, starting first with the legal system itself. “Parent” as defined by Black's Law

Dictionary is:

The lawful father or mother of someone ... the term commonly includes (1) either the natural father or the natural mother of a child, (2) the adoptive father or adoptive mother of a child, (3) a child's putative blood parents who has expressly acknowledged paternity, and (4) an individual or agency whose status as guardian has been established by judicial decree...2

By traditional definition, non-biological, non-adoptive parents are not contemplated as persons who are parents prior to the entry of a court order determining their status as such.

Accordingly, Nebraska law was enacted by legislatures presuming that non-

biological, non-adoptive parents should not be considered or regarded as parents. This is

the inherent premise upon which the Nebraska statutes were enacted as each of these

statutes specifically defines “parents” as a biological or adoptive parent, with the

exception of the NCCJA, which is the focus of the statutory review.3

Family law practitioners in Nebraska must achieve clarity on how to protect the rights of

children whose parents are non-biological or non-adoptive parents. It is naive to believe that

persons in same-sex relationships are not parenting children, as it is estimated that the number of

children in the being raised by at least one gay parent is between 1 million and 9

million.4 The question that presents itself is if a same-sex relationship fails, how do we protect

the best interests of children who have a relationship with a person who has parented them from

birth, early childhood or adolescence? How can practitioners advocate to preserve relationships

between children and their non-biological, non-adoptive parents whom the children rely on,

receive comfort from, and hold close to their hearts?

First, this essay will examine the marriage and dissolution of marriage statutes, second, the

paternity statutes and the juvenile code, next it will review the adoption laws and finally it will

review the NCCJA. This evaluation will conclude that legal parenthood as defined under the

statutes related to marriage, paternity, adoption and the juvenile actions, only recognizes

biological or adoptive parents for the purposes of custody determinations and visitation. This

essay will propose that non-biological, non-adoptive parents may utilize the NCCJA to request a custody determination be made in the best interests of a child.

1. Divorce and Marriage Statutes Preclude Recognition of Same Sex Relationships Rights for those who enjoy legally recognized parenthood can be enforced in actions

involving dissolutions of marriage, paternity, adoption, neglect or abuse cases involving removing

children from a home and terminating parental rights, and jurisdictional custody disputes.5 The majority of these actions presume the parties involved to be either biological parents or adoptive parents.6

If one is a legal parent to a child, the relationship is statutorily protected and is afforded

protection under the United States Constitution, as parents have fundamental rights within the

guarantees of the of the Fourteenth Amendment in the care, custody and

control of their children.7 This protection is largely due to the legal protection afforded to

children born from a marriage, as the right to privacy protected by the Fourteenth Amendment of

the United States Constitution includes a right to freedom of choice in marriage and family

decisions.8

The Nebraska dissolution of marriage statutes most prevalently address the parent/child

relationship and custody matters.9 Marriage is the sine qua non for legal recognition of parenthood, as legitimacy of children is presumed in marriage.10 To be legally married in

Nebraska, the parties must solemnize their union.11 To solemnize a union, the parties must

solemnly declare that they take each other as husband and wife.12 This presumes that only a man

and a woman can be legally married.

On November 7, 2000, Nebraska voters adopted Initiative 416, an amendment to the

Nebraska Constitution known as the Defense of Marriage Amendment (“DOMA”). This

amendment to the Constitution reads: “Only marriage between a man and a woman shall be valid

or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic

partnership, or other similar same sex relationship shall not be valid or recognized in Nebraska.”13 This Constitutional amendment has not yet been challenged in or interpreted by a

Nebraska court and the practical applications are not fully understood. As the title of the

amendment implies that the intent was the defense of marriage, it may be wholly inapplicable to

children. Whether there are any far reaching implications that may impact children who are being

raised out of wedlock is unknown. The practitioner must be aware of this

constitutional amendment and consider possible challenges and interpretations when representing

one party in a same sex parenting case.

2. Paternity and Juvenile Matters

The purpose of the paternity statutes is to protect children born out-of-wedlock and

preserve the relationship between the biological parent and child.14 These statutes provide no

protection for the relationships of non-biological, non-adoptive parents with their children.

Therefore, a critical review of these laws is not applicable to non-biological, non-adoptive parents

and is beyond the scope of this discussion.

Likewise, actions brought under the juvenile code are limited to the protection and

intervention for juveniles.15 “Parent” as defined under the juvenile code means “one or both parents or a stepparent when such stepparent is married to the custodial parent as of the filing of the petition.”16 This definition of parent does not explicitly preclude a non-biological, non-

adoptive parent. However, actions are limited to juveniles who have committed

offenses, juveniles who are homeless, destitute, or without proper support and care, proceedings

for termination of parental rights, voluntary relinquishments of juveniles, adoption or

guardianship proceedings or paternity proceedings.17

These statutes do not specifically recognize rights for non-biological, non-adoptive parents

with their children if the biological parent maintains a relationship with their children. The juvenile code does not address custody determinations of children beyond the scope of a parent/child relationship where the parent’s parental rights or fitness as a parent are in question.

The juvenile code as it relates to non-biological, non-adoptive parents seeking legal protection of their relationships when the biological parent is found to be unfit or the biological parent's rights have been terminated, is beyond the scope of this discussion.

3. Adoption and Guardianship

For a non-biological parent, adoption seems the obvious answer to obtain legal protection of a parent/child relationship, thereby establishing and preserving legal rights for both the child and the parent.

An adoption would allow for a myriad of protections and assurances for the minor child and the parent. The benefits inherent in an adoption by a non-biological parent are to:

Χ formalize a parental relationship that the child recognizes in fact;

Χ assure that the parent is committed to the child;

Χ guarantee an ongoing financial responsibility to the child;

Χ ensure the child legal access to and support to of the parent;

Χ allow the parent to obtain health insurance and other employment related benefits

for the child;

Χ permit the parent to act in the child’s bests interests without challenge to their

parental authority by third parties such as doctors, hospitals, day cares, school,

religious institutions, and camps;

Χ protect the inheritance rights of the child in the event that the adoptive parent died

without a will, enabling the child would to inherit from the adoptive parent and

from the adoptive parent’s relatives; Χ allow the child to be eligible for Worker’s Compensation and Social Security

benefits upon adoptive parent’s unemployment, disability or death;

Χ create legal standing for the child to bring a wrongful death action and benefit for

any “next of kin” privileges; and

Χ protect the child in the event of biological parent’s death because the adoptive

parent would be entitled to a presumptive guardianship of the minor child and thus

the family unit would not be threatened.

Nebraska statutes do not explicitly preclude by homosexual persons as some

other states do.18 The Nebraska statutes allow for any adult person or persons to adopt any minor child.19 However, in attempting to clear the intricate statutory hurdles, a person in a same-sex

relationship with a biological parent falters in securing an adoption as articulated in the recent

Nebraska Supreme Court case of In re Adoption of Luke.20

The recently ruled in the case of Luke, that a county court

correctly denied an adoption petition where a biological parent and her partner sought to have the

partner become an adoptive parent. The court specifically found:

For an adoption to be valid under Nebraska's adoption statutes, the record must show the following factors: (1) the existence of an adult person or persons entitled to adopt, (2) the existence of a child eligible for adoption, (3) compliance with statutory procedures providing for a adoption, and (4) evidence that the proposed adoption is in the child’s best interests. Neb. Rev. Stat. § 43-101 (et. seq.) . . . The absence of any one of the necessary factors will preclude the adoption.21

The court found that Nebraska law permits a single adult person to adopt a child after all

of the necessary consents and relinquishments have been filed.22 However, a biological parent

must relinquish his or her parental rights prior to a single adult adopting their child.23 Therefore,

the inference that follows is that “any person” does not include a person in a same-sex relationship with a biological parent.

The sole purpose of adoption is to serve and protect a child's best interests as every adoption decree entered must be found to be in the best interests of the minor child.24 The

presumed intent of the adoption statutes is to protect children by legally recognizing the

parent/child relationship.25 Under Nebraska law, one who actively plans for the pregnancy,

participates in the pregnancy or birth of the child, serves as a parent from birth, provides the child

with a surname, financially supports the child and in all aspects is a parent to the child and is

recognized by the child as such, can be prohibited from legally solidifying the relationship with

the child. This is an obvious contradiction to the statutory requirement that a finding be made that

the adoption be in the child's best interests. This legal conclusion presents an inherent flaw in the

law when it is in the best interests of a child that an adoption be granted but is denied on this

basis.

Under the current statutory interpretation, the child's best interests are ignored and an

absurd result achieved. A procedural element, which by its very nature contradicts the purpose of

adoption, takes precedence over the best interests of the child. A biological parent, who believes

it is in the child's best interests to secure an adoption by a second parent, must first terminate his

or her own parental rights. To demand that a fit parent relinquish parental rights in order to

provide the benefits and security of a second legal parent for the child is in blatant disregard of the

child’s best interests.

A non-biological, non-adoptive parent may also consider establishing a guardianship on

behalf of their child. However, in order to establish a legal guardianship in Nebraska, the parental

rights of the biological parents must be terminated or suspended.26 This creates the same Catch-

22 that parents in a same sex relationship with a biological parent are facing in adoption cases. The biological parent must first terminate their parental rights to legally recognize the rights of

their partner. Likewise for two non-biological, non-adoptive parents, it may be difficult to ensure that both biological parents' rights are terminated or suspended.

Absent a dissolution action, a paternity action, an adoption, a guardianship, or a juvenile matter, a remaining outlet available to non-biological, non-adoptive parents is to petition for custody under the NCCJA.

4. NCCJA Provides Protection for Children of Same Sex Parents

The question arises as to whether non-biological, non-adoptive parents have any statutory

relief available to them. One answer lies in the use of the NCCJA.27

The NCCJA does not limit the custody determinations to be made under the Act to

biological or adoptive parents. Rather, a non-biological or non-adoptive person has the right to

initiate a custody determination under the act. Neb. Rev. Stat. section 43-1202(1) provides:

“[c]ontestant shall mean a person, including a parent, who claims a right to custody or visitation rights with respect to a child.”28 The act further states: “Person acting as a parent shall mean a

person, other than a parent, who has physical custody of a child and who has either been awarded

custody by a court or claims a right to custody”29 Therefore, any person who claims a right may

initiate a custody determination. Custody determination means “a court decision and court orders

and instructions providing for the custody of a child, including visitation rights, . . .”30

Therefore, there is an opening in the discriminatory screen Nebraska law has crafted for

non-biological, non-adoptive parents to preserve their relationships with their children. However,

this opening is not without limitations, as there are specific statutory requirements that must be

met. In order to bring an action under the NCCJA, Nebraska must be the child’s home state.31

Home state is defined as “the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least six consecutive

months . . .”32 Accordingly, so long as a person acting as parent, who may be a non-biological,

non-adoptive parent, has resided in Nebraska with their child for six months, he or she may bring

an action under the NCCJA for a custody determination.

Purposes of the NCCJA, in addition to avoiding jurisdictional competitions, are to

“discourage continuing controversies over child custody in the interest of greater stability of home

environment and of secure family relationships for the child.”33 These purposes serve to protect a child’s relationship with his or her parent and to create security and stability for the child in those relationships. The NCCJA allows for a non-biological, non-adoptive parent to bring a custody action before the court for consideration of the minor child’s best interests.34

Practitioners are encouraged to utilize the NCCJA to effectuate this exact purpose ― to

protect the stability of a home environment and secure family relationships for a child who is

raised by a non-biological, non-adoptive parent. Nebraska’s statutory scheme under the NCCJA

permits non-biological, non-adoptive parents to petition for a custody determination that would be

in the best interests of the child. The NCCJA creates a mold for solidification of those

relationships which practitioners must begin utilizing in order to be effective advocates.

B. EQUITABLE DOCTRINES SUPPORT PROTECTING THE RIGHTS OF NON-BIOLOGICAL, NON- ADOPTIVE PARENTS

Various equitable doctrines have been created by courts to address the child’s best

interests when a child has been raised by a non-biological, non-adoptive parent. This essay will

review both the in loco parentis doctrine and the parental preference doctrine which, on the their

face, seem contradictory, or at a minimum, irreconcilable for non-biological, non-adoptive

parents. This essay will review how a person may stand in loco parentis to a child and next assess Nebraska’s parental preference doctrine that stands for the proposition that a biological parent has

a superior right to parent his or her child. This essay will conclude that the parental preference

doctrine should be vacated in favor of the application of the best interests of the child in all

circumstances related to a determination of custody or visitation.

The Nebraska Supreme Court has advanced the proposition that “when the judicial system

becomes involved in family matters concerning relationships between parent and child, simplistic analysis and the strict application of absolute legal principles should be avoided ... this is especially true where the third party has cared for a child as his or her own.”35 We agree.

1. In loco parentis Applied to Non-biological, Non-adoptive Parents: Russell v. Bridgens

Nebraska law favors the use of the in loco parentis doctrine where it is demonstrated that a person has put himself or herself in the role of a parent by assuming all of the obligations incident to the parental relationship.36 The Nebraska Supreme Court found guidance from the Nebraska

Parenting Act as to what constitutes the “obligations incident to the parental relationship.”37

The Parenting Act enacted in Nebraska articulates the rights, duties, and liabilities

considered a part of parental functioning.38 The Parenting Act states:

(2) Parenting functions shall mean those aspects of the parent-child relationship in which the parent makes fundamental decisions and performs fundamental functions necessary for the care and development of the minor child. Parenting functions shall include, not be limited to: (a) Maintaining a loving, stable, consistent, and nurturing relationship with the minor child; (b) attending to the ongoing needs of the minor child, including feeding, clothing, physical care and grooming, supervision, and engaging in other activities appropriate to the healthy development of the minor child within the social and economic circumstances of the family; (c) attending to adequate education for the minor child, including remedial or other special education essential to the best interests of the minor child; (d) assisting the minor child in maintaining a positive relationship with both parents and other family members; (e) assisting the minor child in developing and maintaining appropriate interpersonal relationships; and (f) exercising appropriate support for social, academic, athletic, or other special interests and abilities of the minor child within the social and economic circumstances of the family.39

The logical conclusion drawn from Hickenbottom v. Hickenbottom40 is that when a non- biological, non-adoptive person assumed the roles as articulated under the Parenting Act, the in loco parentis doctrine should apply.

The Nebraska Supreme Court has articulated the in loco parentis doctrine as being applicable to a situation where:

A person standing in loco parentis to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent.41

The Nebraska Supreme Court applied the in loco parentis doctrine to the visitation rights of a stepparent to a child whom the stepparent had raised since the child was two years old.42 The court held that rather than decide rights to a child by blood relations, it is often better for the child to be able to continue the relationship with a party when examined in the light of what is best for the child’s continued growth and happiness.43 The court specifically stated:

Visitation is not solely for the benefit of the adult visitor but is aimed at fulfilling what many conceive to be a vital, or at least a wholesome contribution to the child’s emotional well-being by permitting partial continuation of an earlier established close relationship. Usually such an affiliation is with a natural parent. But it need not be. Those involved with domestic relations problems frequently see situations where one who is not a natural parent is thrust into a parent-figure role, and through superior and faithful performance produces a warm and deeply emotional attachment.44

In Russell v. Bridgens,45 the Nebraska Supreme Court recently had the opportunity to specifically apply the in loco parentis doctrine in a same-sex custody dispute 46 Although this case was ultimately decided on the issue of the burden of proof to sustain a motion for summary judgment, the concurrence articulated the application of the in loco parentis doctrine to a same

sex custody dispute.47

The facts of Russell are as follows: Russell and Bridgens were two unmarried women.48

They lived together and raised a child together from 1996 until August, 1999 when they

separated.49 The child was nine days old when he went to live the with parties.50 Russell was a

stay-at-home mother for the child and was his primary care giver from infancy until he was five

years old.51 Russell was the parent who got up with the child at night, potty trained him, prepared

and fed him his meals, comforted him, read to him at night, participated in his religious training

and saw to his educational needs.52 Russell was the parent who nursed the child after the child’s

open heart surgery.53 Russell took the child to his cardiologist appointments and administered his

medication.54

In 1997, Russell and Bridgens secured a second parent adoption in the State of

Pennsylvania.55 There was a dispute in the case regarding the validity of the co-parent adoption; however, the concurrence in the case stated that regardless of the validity of the adoption, the petition for custody can be maintained under the doctrine of in loco parentis.56

The facts under Russell clearly demonstrate the need and urgency for practitioners to

advocate and judges to apply the in loco parentis doctrine. The in loco parentis doctrine applies

precisely to cases in which a person standing in the shoes of a parent is unprotected by legal

recognition of the parental role. This doctrine, under equity, legally protects relationships

between children and their non-biological, non-adoptive parents.

The application of the in loco parentis doctrine under the NCCJA protects the parent who

has: maintained a loving, stable, consistent, and nurturing relationship their child; attended to the

ongoing needs of their child, including feeding, clothing, grooming, supervising, and engaging in activities appropriate to the healthy development of their child; attended to education for their

child; assisted their child in maintaining a positive relationship with parents and other family

members; assisted their child in developing and maintaining appropriate interpersonal

relationships; and exercised appropriate support for social, academic, athletic, or other special

interests and abilities of their child. The application of the in loco parentis doctrine protects non-

biological, non-adoptive parents and their children.

2. Parental Preference Doctrine

Despite the doctrine of in loco parentis and the potential protection it can afford non- biological, non-adoptive parents, there is yet another roadblock to be considered. Nebraska courts continue to apply the parental preference doctrine.57 The question remains as to whether this

doctrine will be inapplicable or abolished in consideration of same sex relationships where one

partner is the legal parent of a minor child and the other partner has actively parented the child.

Nebraska law operates under the presumption that biological and adoptive parents hold a

superior right to child custody over unrelated third persons.58 The parental preference doctrine

stands for the proposition that:

A court may not, in derogation of the superior right of a biological or adoptive parent, grant child custody to one who is not a biological or adoptive parent unless the biological or adoptive parent is unfit to have child custody or has legally lost the parental superior right in a child.59 The parental preference doctrine means that absent a showing of unfitness, the biological

parent prevails against an unrelated person when custody is in dispute.60 In Blecha v. Blecha, the

Nebraska Supreme court held that absent a showing of abuse or neglect, the biological father’s

right to his children trumped the interest of strangers to the parent-child relationship.61 The

“strangers” in Blecha were the children’s maternal grandmother and maternal aunt.62 The Nebraska Court of Appeals recently modified the parental preference doctrine in cases

under the jurisdiction of the juvenile court in In re Eric O. & Shane O.63 The court held that the parental preference doctrine did not negate an examination of the children’s best interests in a juvenile matter as the hallmark of the juvenile code is the best interests of the child.64 The court found that the parental preference doctrine was not applicable or controlling because the juvenile court makes decisions concerning children with the paramount consideration always being the best interests of the child.65

For non-biological, non-adoptive parents, the issue will arise as to whether the parental

preference doctrine will control or whether a determination of the best interests of the child may

prevail. As previously mentioned, any custody dispute between a non-biological, non-adoptive

parent and another parent will presumably be brought under the NCCJA, as this Nebraska statute

allows a non-biological, non-adoptive parent to pursue a custody determination.66

Under the NCCJA, the best interests of the children control custody proceedings and the

factors considered in a custody proceeding are those factors prescribed in Neb.Rev.Stat. section

42-364(2).67 Therefore, the best interests as the paramount concern to a custody determination

under the NCCJA should negate application of the parental preference doctrine in cases brought

under this Act. This issue has not been brought before the Nebraska appellate courts and

practitioners should draw from the conclusions in In re Interest of Eric O. & Shane O, and put

forth the legal analogy to cases considered under the NCCJA. Further, the parental preference

doctrine should be abolished in favor of the best interests of the child.

C. BEST INTERESTS OF CHILDREN WITH NON-ADOPTIVE, NON-BIOLOGICAL PARENTS: SAME SEX PARENTING

This essay will first review those considerations that encompass the best interests of the child and how the best interests test is applied under Nebraska law. Second, this essay will look at

empirical data regarding the effects, if any, on children being raised by non-biological, non-

adoptive parents in same-sex relationships and finally, this essay will conclude that the best

interests of the child require that the sexual orientation of a non-biological, non-adoptive parent

have no impact on the rights of that parent or on the right of the child to be parented by a non-

biological, non-adoptive parent.

Best interests of children are always at the heart of any analytical framework in an action

where custody or visitation is at issue.68 The Nebraska Supreme Court supports the proposition

that a parent’s rights are not absolute, as they must yield to the best interests of the child.69 The

best interests of the child test is utilized for a number of varying consideration of actions

involving children from whether a child should be move across state lines to whether a minor

child’s name should be changed; the best interests of the child are of paramount concern.70

1. Best Interests Defined

The test for the best interests of a child is found in under the dissolution of marriage statute at Neb. Rev. Stat. section 42-364(2) that sets forth the following criteria:

In determining custody arrangements and the time to be spent with each parent, the court shall consider the best interests of the minor child which shall include, but not be limited to: (a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing; (b) The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning; (c) The general health, welfare, and social behavior of the minor child; and (d) Credible evidence of abuse inflicted on any family or household member.71

2. Same Sex Parents and Consideration of Sexual Orientation

The American Academy of issued a policy statement finding that “a growing body of scientific literature demonstrates that children who grow up with one or two gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual. Children's optimal development seems to be influenced more by the nature of the relationships and interactions within the family unit than by the particular structural form it takes.”72 The statement states the “weight of the evidence gathered during several decades using diverse samples and methodologies is persuasive in demonstrating that there is no systematic difference between gay and nongay parents in emotional health, parenting skills, and attitudes toward parenting.”73

The Nebraska Supreme Court has held that in determining a child's best interests, the court may consider the moral fitness of the child's parent and the parent's sexual conduct.74 However, the court further holds that absent a showing that the minor child was exposed to the parent's sexual activity or were adversely affected by said activity, a parent's sexual activity does not affect a child custody determination and does not warrant a material change in circumstances sufficient for a modification.75

In Hassenstab v. Hassenstab,76 the Nebraska Court of Appeals addressed whether the aforementioned rule regarding a parent's sexual conduct applied in the context of a parent in a homosexual relationship.77 The court found that the minor child was generally aware of her mother's homosexual relationship but no evidence was presented that the child was directly exposed to the sexual activity or harmed by the same sex relationship.78 The court found that the lack of any harmful effect on the minor child precluded a modification of a decree to change custody.79

Some practitioners may be wary of advocating the use of the in loco parentis doctrine to be applied to gay and lesbian parents who are neither the biological or adoptive parent. There may be a perception that this would open the floodgates to family members, non-biological care takers, and other persons who want to assert a right to parent or be awarded visitation. However, since Hickenbottom was decided in 1991, affirming a district court decision granting a stepfather reasonable visitation with his stepdaughter, there have been only a handful of cases pertaining to a person standing in loco parentis to a child.80 Further, the majority of these cases arise from a biological parent attempting to collect from a non-biological, non-adoptive parent by asserting that the person stands in loco parentis to the child.81

This essay advocates the application of the in loco parentis doctrine in those cases where it is clearly the intention of the non-biological, non-adoptive parent to be a parent. It is applicable to the parent who is maintaining a loving, stable, consistent and nurturing home environment and providing financial support for the child.

Consideration of a parent's sexual orientation is not in the best interest of a child who has been raised by a non-biological, non-adoptive parent who is in a same sex relationship with the child's other parent. The focus should be on the relationship, on the child's emotional, cognitive, and social development as related to that relationship, and on the child's well-being rather than a preference for blood relations.

CONCLUSION

Nebraska is in a period of both opportunity and challenge in the representation of gays and lesbians who are non-biological, non-adoptive parents. Discouragement can be had in the face of a constitutional amendment declaring their relationships invalid and from the denial of one second parent’s adoption in In re Luke. Hopefulness is seen the Nebraska Court of Appeals’ refusal to allow sexual orientation to impact its ruling in Hassenstab v. Hassentab and the Nebraska

Supreme Court’s decision in Russell v. Bridgens to allow a lesbian adoptive mother to proceed with her custody case under the NCCJA. During this time, family law practitioners with the intention to be zealous advocates must use the tools available to them under the law, educate the judiciary through their advocacy, and support legislative reform consistent with the recognition of the best interests of children. As the state of Nebraska law more fully develops in this area, these actions are essential for all attorneys who believe that children have a right to security and stability in their relationships with those who parent them.

† Angela Dunne Tiritilli holds a Juris Doctorate from the University of Nebraska College of Law and a Bachelor of Arts in English Literature from Nebraska Wesleyan University. Since 1999 she has practiced family law and estate planning at the Law Office of Susan Ann Koenig, P.C. She is a member of the Nebraska State Bar Association, the American Bar Association, the Nebraska Women's Bar Association, and the Omaha Bar Association. She is an adjunct professor for College of Saint Mary's paralegal studies program in Omaha, Nebraska.

†Susan Ann Koenig has practiced law for 21 years and teaches Women and the Law at Creighton University School of Law. Susan is the author of Fulfilling Our Ethical Duties Regardless of Client Sexual Orientation: Considerations in Meeting the Needs of Our Gay and Lesbian Clients, THE NEBRASKA LAWYER, April 1999. The Law Office of Susan Ann Koenig, P.C. advocates for the legal rights of gay and lesbian clients.

1 Nebraska Child Custody Jurisdiction Act (NCCJA), NEB. REV. STAT. §§ 43-1201 to - 1225 (Reissue 1998).

2 BLACK'S LAW DICTIONARY 1137 (7th ed. 1999).

3 NEB. REV. STAT. '42-377 (Reissue 1998); NEB. REV. STAT. '' 43-1401(2), 43-1406 (Reissue 1998); NEB. REV. STAT. ' 43-101 to - 165. (Reissue 1998); NEB. REV. STAT. ' 43- 245(10) (Reissue 1998); NEB. REV. STAT. ' 43-1202 (Reissue 1998). 4 Laumann EO, National Health and Social Life Survey. Chicago IL: University of Chicago and National Opinion Research Center, 1995; U.S. Pediatricians Argue for Rights of Gay Parents, REUTER'S NEWS, Feb. 4, 2002, available at http://www.spectrum.ieee.org/htmcache at www.religioustolerance.org/horm_pare5htm.

5 NEB. REV. STAT. '42-377 (Reissue 1998); NEB. REV. STAT. '' 43-1401(2), 43-1406 (Reissue 1998); NEB. REV. STAT. ' 43-101 to -165 (Reissue 1998); NEB. REV. STAT. ' 43- 245(10) (Reissue 1998); NEB. REV. STAT. ' 43-1202 (Reissue 1998).

6 NEB. REV. STAT. '42-341 to –344 (Reissue 1998); NEB. REV. STAT. ' 43-1401 to -1418 (Reissue 1998); NEB. REV. STAT. ' 43-101 to –165 (Reissue 1998); NEB. REV. STAT. ' 43-245 to –2.127 (Reissue 1998); NEB. REV. STAT. ' 43-1201 to –1225 (Reissue 1998). 7 Santosky v. Kramer, 455 U.S. 745, 753 (1982).

8 Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (citing Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923)).

9 NEB. REV. STAT. '42-341to -344 (Reissue 1998). 10 NEB. REV. STAT. ' 42-377 (Reissue 1998). 11 NEB. REV. STAT. ' 42-104 (Reissue 1998). 12 NEB. REV. STAT. ' 42-109 (Reissue 1998). 13 NEB. CONST. art. I, ' 29 (2000) (adopted 2000, Initiative measure No. 416). 14 NEB. REV. STAT. ' 43-1401to -1418 (Reissue 1998). 15 NEB. REV. STAT. ' 43-246 (Reissue 1998). 16 NEB. REV. STAT. ' 43-245(10) (Reissue 1998). 17 NEB. REV. STAT. ' 43-247 (Reissue 1998). 18 FLA. STAT. ch. 63.042(3) (1997); N.H. REV. STAT. ANN. ' 170-B:4 (1990). New Hampshire has struck the homosexual exclusion from its statute. N.H. REV. STAT. ANN. § 170- B:4 (2001). The 2001 version of the statute does not contain such language. Id.

19 NEB. REV. STAT. ' 43-101 (Reissue 1998). 20In re Adoption of Luke, 263 Neb. 365, 640 N.W.2d 374 (2002).

21 Luke, 263 Neb. at 369, 640 N.W.2d at 378.

22 Id.

23 Id.

24 NEB. REV. STAT. ' 43-109(1) (Reissue 1998). 25 NEB. REV. STAT. ' 43-110 (Reissue 1998). 26 NEB. REV. STAT. ' 30-2608 (Reissue 1998).

27 NEB. REV. STAT. ' 43-1201 to -1225 (Reissue 1998). 28 NEB. REV. STAT. 43-1202(1) (Reissue 1998).

29 NEB. REV. STAT. ' 43-1202(9) (Reissue 1998). 30 NEB. REV. STAT. ' 43-1202(2) (Reissue 1998). 31 NEB. REV. STAT. ' 43-1203(1)(a) (Reissue 1998). 32 NEB. REV. STAT. ' 43-1202(5) (Reissue 1998). 33 NEB. REV. STAT. ' 43-1201(1)(d) (Reissue 1998). 34 NEB. REV. STAT. ' 43-1201to -1225 (Reissue 1998). 35 Hickenbottom v. Hickenbottom, 239 Neb. 579, 588, 477 N.W.2d 8, 14-15 (1991) (quoting Collins v. Gilbreath, 403 N.E.2d 921, 923 (Ind. App. 1980)).

36 Weinand v. Weinand, 260 Neb. 146, 152-53, 616 N.W.2d 1, 6 (2000).

37 Weinand, 260 Neb. at 153, 616 N.W.2d at 6.

38 Id.

39 NEB. REV. STAT. ' 43-2903(2) (Reissue 1998). 40 239 Neb. 579, 588, 477 n.W.2d 8, 14-15 (1991).

41 Weinand, 260 Neb. at 152-53, 616 N.W.2d at 6 (citations omitted).

42 Hickenbottom, 239 Neb. at 581, 477 N.W.2d at 10.

43 Id. at 592-93, 477 N.W.2d at 17.

44 Id. at 587, 477 N.W.2d at 14 (quoting Cooper v. McManus, 581 P.2d 487, 488-89 (Okla. App. 1978)).

45 264 Neb. 217, 647 N.W.2d 56 (2002).

46Russell v. Bridgens, 264 Neb. 217, 219, 647 N.W.2d 56, 58 (2002).

47Russell, 264 Neb. at 229-31, 647 N.W.2d at 65-66 (Gerrard J., concurring).

48Id. at 219, 647 N.W.2d at 58.

49Id. at 218-19, 647 N.W.2d at 57-59.

50 Appellant=s Brief at 9, Russell v. Bridgens, 264 Neb. 217, 647 N.W.2d 56 (2002) (No. A-01-965).

51 Appellant’s Brief at 9, Russell (No. A-01-965).

52 Appellant=s Brief at 27, Russell (No. A-01-965). 53 Id.

54 Id.

55 Russell, 264 Neb. at 219, 647 N.W.2d at 57-59.

56Id. at 219, 647 N.W.2d at 57-59; Russell, 264 Neb. at 230, 647 N.W.2d at 65-66 (Gerrard J., concurring).

57 See Stuhr v. Stuhr, 240 Neb. 239, 246, 481 N.W.2d 212, 217 (1992); In re Interest of Amber G., 250 Neb. 973, 982, 554 N.W.2d 142, 149 (1996); Uhing v. Uhing, 241 Neb. 368, 374, 488 N.W.2d 366, 371 (1992).

58In re Interest of Eric O. & Shane O., 9 Neb. Ct. App. 676, 685, 617 N.W.2d 824, 832 (2000). See also Amber, 250 Neb. at 981-82, 554 N.W.2d at 148-49 (recognizing a constitutionally protected relationship between a parent and a child); and Uhing, 241 Neb. at 371, 488 N.W.2d at 371 (noting that biological parents have superior custody rights).

59 Stuhr, 240 Neb. at 246, 481 N.W.2d at 217. See also Eric O., 9 Neb. Ct. App. at 684, 617 N.W.2d at 832; Blecha v. Blecha, 257 Neb. 543, 547, 599 N.W.2d 829, 832 (1999).

60 Eric O., 9 Neb. Ct. App. at 685, 617 N.W.2d at 832.

61 Blecha, 257 Neb. at 547, 599 N.W.2d at 832.

62 Id. at 544-45, 599 N.W.2d at 830-31.

63 9 Neb. Ct. App. 676, 685, 617 N.W.2d 824, 832 (2000).

64 In re Interest of Eric O. & Shane O., 9 Neb. Ct. App. 676, 688, 617 N.W.2d 824, 833

(2000).

65 Eric O., 9 Neb. Ct. App. at 688, 617 N.W.2d at 833.

66 NEB.REV.STAT. '43-1202(9) (Reissue 1998). 67 NEB.REV.STAT. '43-1214.01 (Reissue 1998). 68 NEB. REV. STAT. ' 43-109 (Reissue 1998); NEB. REV. STAT. ' 43-292 (Reissue 1998); NEB. REV. STAT. ' 43-1214.01 (Reissue 1998); NEB. REV. STAT. ' 30-2610 (Reissue 1998). 69 Nielsen v. Nielsen, 217 Neb. 34, 35, 348 N.W.2d 416, 417 (1984) (citing Gorsuch v. Gorsuch, 148 Neb. 122, 26 N.W.2d 598 (1947)).

70 See Vogel v. Vogel, 262 Neb. 1030, 1041, 637 N.W.2d 611, 621 (2002) (stating that when a custodial parent petitions for removal of the minor child from the jurisdiction, the paramount consideration is whether the proposed move is in the minor child=s best interests); In re Change of Name of Andrews, 235 Neb. 170, 175, 454 N.W.2d 488, 491 (1990) (a change in a minor child=s surname must be found to be in the minor child=s best interests); Peter v. Peter, 262 Neb. 1017, 1025, 637 N.W.2d 865, 873 (2002) (quoting Noonan v. Noonan, 261 Neb. 552, 567, 624 N.W.2d 314, 327 (2001) (stating that the paramount concern in determining child support is the best interests of the minor child)).

71 NEB. REV. STAT. '42-364(2) (Reissue 1998). 72 Ellen C. Perrin, M.D., Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 American Acadmey of Pediatrics No. 2 (February 2002) at 341.

73 Id.

74 Smith-Helstrom v. Yonker, 249 Neb. 449, 459, 544 N.W.2d 93, 100 (1996); Helgenberger v. Helgenberger, 209 Neb. 184, 188, 306 N.W.2d 867, 870 (1981).

75 Smith-Helstrom, 249 Neb. at 460, 544 N.W.2d at 101; Helgenberger, 209 Neb. at 188, 306 N.W.2d at 870.

76 6 Neb. Ct. App. 13, 570 N.W.2d 368 (1997).

77 Hassenstab v. Hassenstab, 6 Neb. Ct. App. 13, 18, 570 N.W.2d 368, 372 (1997).

78 Hassenstab, 6 Neb. Ct. App. at 20, 570 N.W.2d at 373.

79 Id.

80 See Mair v. James, No. 1-00-016 (Neb. Ct. App. 2001) (applying parental preference doctrine to award custody to biological father over maternal gradmother and maternal great- grandfather seeking custody under in loco parentis doctrine); Weinard v. Weinard, 260 Neb. 146,

152-53, 616 N.W.2d 1, 6 (2000); Quintela v. Quintela, 4 Neb. Ct. App. 396, 401-02, 544 N.W.2d 111, 116 (1996); Cavanaugh v. deBaudiniere, 1 Neb. Ct. App. 204, 218-19, 493 N.W.2d 197, 206-07 (1992) (stating that ex-stepfather has no rights unless he maintains an in loco parentis relationship with the child); In re Destiny, 263 Neb. 255, 262, 639 N.W.2d 400, 406-07 (2002) (stating subsequent adoption terminates a persons’ in loco parentis standing); Hamilton v. Foster, 260 Neb. 887, 903-04, 620 N.W.2d 103, 116 (2000) (determining that in loco parentis is an issue of intent and if a person chooses to terminate the relationship, the in loco parentis status also terminates).

81 See Wienand, 260 Neb. at 152-53, 616 N.W.2d at 6; Quintela, 4 Neb. Ct. App. at 401- 02, 544 N.W.2d at 116; Cavanaugh; 1 Neb. Ct. App. at 218-19, 493 N.W.2d at 206-07; Hamilton, 260 Neb. at 903-04, 620 N.W.2d at 116.